"I think that requirements that keep new entrants of certain religions out of various lines of business are substantial burdens."
This cannot possibly be correct. It's not a substantial burden on one's religion simply to be precluded from working in a small percentage of jobs in the economy because the very nature of those jobs is inconsistent with one's religion. Assume, for instance, that my religion prohibits me from being involved in capital punishment. That would exclude me from a handful of government jobs, but I think I'd be perfectly ok. That is to say -- the effective exclusion from those jobs is highly, highly, unlikely to put any pressure on me, let alone substantial pressure, to violate my religious obligations. As for your lottery ticket hypo, assuming that all three individuals actually think it would be sinful for them to sell lottery tickets, the law would impose the same burden on Ahmed and Charles --probably a substantial burden, depending on their alternatives -- while the burden on Betty would be far less, since she hasn't invested nearly as much in the business. On Sun, Aug 16, 2015 at 5:56 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > 1. It seems to me that the right question for > Sherbert/Yoder-model purposes is whether there’s an “equal burden on [the > applicants’] religious exercise” – rather, it’s whether there’s a > substantial burden. Perhaps the high school graduate in the hypothetical > below is less burdened than the 55-year-old. But I would think both are > still substantially burdened. (I set aside here whether the hypothetical > mandate may violate the Free Speech Clause.) Among other things, if the > goal of religious exemption regimes is to let people of all faiths > participate as much as possible in social life, including business life > (unless, of course, that participation necessarily undermines compelling > government interests), I think that requirements that keep new entrants of > certain religions out of various lines of business are substantial burdens. > > > > 2. Imagine a state requires all convenience stores to sell > lottery tickets. Three people all believe it would be wrong for them to > sell lottery tickets, since that would involve them in gambling, which they > believe is sinful (I believe United Methodists, some Mormons, and some > Muslims have religious objections to gambling). All claim an exemption > from the state requirement under a Sherbert/Yoder regime. > > > > a. Ahmed has run his store for 30 years; the state has > just passed a law requirement convenience stores to sell lottery tickets. > > > > b. Betty has just bought the store, unaware of the lottery > ticket sale requirement, which has existed for a while. The state has > stepped up enforcement, and she now wants an exemption. > > > > c. Charles has run his store for 30 years, and has sold > lottery tickets. He has recently had a religious experience, and has > become a member of the United Methodist Church; he now believes it would be > sinful for him to sell lottery tickets, and he wants an exemption from the > law. > > > > Which of these three applicants can claim that his > religious beliefs are substantially burdened by the lottery ticket sale > requirement, so that the government would have to grant the exemption > (assuming the state follows a Sherbert/Yoder regime) unless it can show > that denying the exemption is necessary to serve a compelling government > interest? I would think that all three are substantially burdened, whether > or not you think one of them is more burdened than others. Am I mistaken? > > > > Eugene > > > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Friday, August 14, 2015 9:25 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Colorado Cakeshop decision > > > > The burden on religious exercise if you have to give up your business *might > *be quite substantial, especially if means choosing between your religion > and sacrificing many years of work, costs, good will, self-fulfillment, > etc. But not if "giving it up" means "not starting down that path in the > first place because you're not willing to abide by the common-carrier rules > required of such businesses." (Denial of unemployment benefits, likewise, > imposes a much greater burden on poor persons than on the wealthy.) > > > > For example: > > > > Let's take two people who both *really *want to teach 10th grade > biology. And they both have the same religious belief that it would be > sinful for them to teach Darwinian evolution. State X passes a law > requiring all schools (public and private) to teach Darwinian evolution in > 10th Grade. > > > > One difference between the two wannabe teachers: One of them is 55 years > old, and has been teaching 10th Grade Bio in a religious school for over 30 > years, from an evolutionist perspective, without speaking a word of > Darwin. It's the only job she's ever had, and her family depends upon her > income. The other is a recent high-school graduate who had planned to > study for an education degree so as to be able to fulfill his dream of > teaching creationism to 10th Graders. > > > > Neither of them can henceforth teach 10th Grade without violating their > religious precepts (or moving to a different state). Equal burden on their > religious exercise? I think not. Not even close. > > > > On Fri, Aug 14, 2015 at 12:07 PM, Volokh, Eugene <vol...@law.ucla.edu> > wrote: > > I appreciate Marty’s argument, but I’m not sure it quite > works. The burden of giving up your business (if you want to avoid > violating your religious beliefs) strikes me as quite substantial, just as > is the burden of giving up your unemployment compensation (if you want to > avoid violating your religious beliefs). And I don’t think the fact that > “you knew the job was dangerous when you took it” changes that analysis, > see *Hobbie v. Unemployment Appeals Comm’n*: > > > > The Appeals Commission also attempts to distinguish this case by arguing > that, unlike the employees in *Sherbert* and *Thomas*, Hobbie was the > "agent of change" and is therefore responsible for the consequences of the > conflict between her job and her religious beliefs. In Sherbert and Thomas, > the employees held their respective religious beliefs at the time of hire; > subsequent changes in the conditions of employment made by the employer > caused the conflict between work and belief. In this case, Hobbie's beliefs > changed during the course of her employment, creating a conflict between > job and faith that had not previously existed. The Appeals Commission > contends that "it is . . . unfair for an employee to adopt religious > beliefs that conflict with existing employment and expect to continue the > employment without compromising those beliefs" and that this "intentional > disregard of the employer's interests . . . constitutes misconduct." Brief > for Appellee Appeals Commission 20-21. > > > > In effect, the Appeals Commission asks us to single out the religious > convert for different, less favorable treatment than that given an > individual whose adherence to his or her faith precedes employment. We > decline to do so. The First Amendment protects the free exercise rights of > employees who adopt religious beliefs or convert from one faith to another > after they are hired. The timing of Hobbie's conversion is immaterial to > our determination that her free exercise rights have been burdened; the > salient inquiry under the Free Exercise Clause is the burden involved. In > Sherbert, Thomas, and the present case, the employee was forced to choose > between fidelity to religious belief and continued employment; the > forfeiture of unemployment benefits for choosing the former over the latter > brings unlawful coercion to bear on the employee's choice. > > > > (By the way, I’m not sure on these facts whether the Colorado cake shop > went into business before or after Colorado banned sexual orientation > discrimination in public accommodations, but I’m happy to set that aside > for purposes of the broader discussion.) > > > > Eugene > > > > Marty Lederman writes: > > > > Or to put Paul's point in a slightly different, more doctrinal light -- > and one that harkens back to our landlord discussions circa 1998 [you can > look it up!] -- if we're in a RFRA jurisdiction, there is far less of a > "substantial burden" on one's religious exercise if the government > "sanction" is merely "if you're not willing to serve everyone, then you > can't be a common carrier" than if the government actually makes it > unlawful for you to do what your religion requires (e.g., O Centro, Yoder). > > > > Of course, the burden is higher on those who developed a reliance interest > on their being able to discriminate -- e.g., those who paid huge costs in > terms of time and money in learning a profession, and building a business, > at a time when the business was not viewed as a common carrier, or where > (in this case) a prohibition on sexual-orientation discrimination was not > foreseeable. > > > > But if one entered the profession when it was *already *a rule that "you > must serve all comers," or "you can't discriminate on the basis of X,Y and > Z," then surely the denial of a religious exemption causes far less of a > burden than in O Centro-like cases. Not *no *burden, of course -- after > all, if it's always been your dream to be a police officer, or to own a > retail business in a state where such businesses have to serve all comers, > then those laws do put *some *pressure on you to deviate from your > religious beliefs. But not nearly as much. > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
